Supreme Court Temporarily Clears Way For Ban On Transgender Military Personnel

Jan 22, 2019
Originally published on January 22, 2019 7:28 pm
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MARY LOUISE KELLY, HOST:

Transgender members of the military and those hoping to enlist find themselves in a new kind of limbo today. The Trump administration's proposed policy to keep trans people out of the military had been on hold while legal challenges worked their way through lower courts. Today, the Supreme Court lifted most of those injunctions.

AUDIE CORNISH, HOST:

That's clearly a win for the Trump administration, but attorney Shannon Minter says not much else about the order is clear. He represents trans service members in two cases challenging the Trump administration's policy, and I spoke to him earlier today.

SHANNON MINTER: The court issued a very limited order. It temporarily stayed three of the four existing injunctions that prevent the Trump administration from barring transgender people from military service. So the Trump administration can now theoretically, if it wishes to, begin enforcing the ban. It's not clear that it's going to do so. It is temporary. It's - will only remain in place until the 9th Circuit rules, at which point the court will take another look at this whole issue.

CORNISH: So it means that the legal challenge to this policy isn't over.

MINTER: Absolutely not. And on the more positive side, the court declined today to take these cases up right now, which it could have done, which means that we are still alive and fighting these challenges in the lower courts.

CORNISH: It's one thing to understand that as an attorney. Can you talk about how your plaintiffs took it? I mean, what did you hear from them? Specifically, how were they feeling?

MINTER: The plaintiffs are understandably really shook up and confused by what's happening because even though this was a temporary limited order, it still does give the military the power to enforce a ban. And you know, you can only imagine what it's like to be deployed overseas or a young person serving in the Naval Academy, like one of our plaintiffs, and get a message like that from our nation's highest court. You know, it's really a body blow to those folks.

CORNISH: Now a Pentagon spokesperson said very clearly DOD's proposed policy is not a ban on service by transgender persons and that the proposed policy is based on professional military judgment. At this point, I mean, basically the Pentagon decides whether or not it's going to move forward, right?

MINTER: Yes, the ball is in the Pentagon's court at this point. They can either start enforcing the ban or not. They could wait to see what ultimately happens. The notion, though, that the policy they want to put into place is not a ban is really absurd. The impact of the policy would be that any transgender person that seeks to enlist in the military will be excluded, and any transgender person who's in the military now but hasn't come out - if that person comes out and says that they are transgender, they will face discharge. So that certainly sounds and looks and operates like a transgender ban.

CORNISH: Do these moves by the Supreme Court make you think that the administration would win if and when one of the challenges does reach the high court?

MINTER: No, it really doesn't. I mean, the ruling today was so limited. I don't think it tells us anything about how the court would consider the constitutional questions that will ultimately probably end up in front of them. So I'm still very optimistic that at the end of the day, even this new, very Conservative Supreme Court, I think, is just going to have to be given serious pause by a policy that categorically excludes a group of people based on a characteristic that doesn't really have anything to do with their fitness for military service.

CORNISH: That's Shannon Minter with the National Center for Lesbian Rights. Thank you for speaking with ALL THINGS CONSIDERED.

MINTER: Thanks, Audie. Transcript provided by NPR, Copyright NPR.